Nine Losing Candidates Challenge August Vote

By Bill Dries

Nine losing candidates from the August elections are contesting the results in a Shelby County Chancery Court lawsuit.

Nine candidates from the August election ballot filed suit in Chancery Court this week contesting the results of the election. The plaintiffs are led by Joe Brown, the Democratic nominee for district attorney general, who filed the suit pro se.

It was filed earlier in General Sessions Court before the new filing in Chancery Court.

The lawsuit, filed pro se by Brown and Ross against the Shelby County Election Commission, seeks “a vote recount and/or the setting aside of the election results as they are individually affected and a declaration declaring them to have won the election.”

The action also seeks an open inspection of records from the election, including computer records.

“Plaintiffs allege that the system has long been tainted through fraudulent programming introduced into the system by hackers conspiring with the defendants and it takes but seconds to reactivate and or modify the taint,” reads the lawsuit. “The system can be reprogrammed such that votes are siphoned away from specific candidates and either hidden or given to specific others.”

The claim is the latest in a series of county election legal challenges since 2006 led by Democratic nominees for county offices, all of which have failed.

"From our perspective, it's frivolous," Election Commission chairman Robert Meyers said of the new lawsuit.

Meanwhile, Chancery Court judges in recent years have by agreement of all parties overturned the results of a Millington referendum on a sales tax hike for schools and have ordered a new election in a Shelby County Schools board race based on voters in both contests not getting the correct races on their ballots in each instance.

The Chancery Court order on the new school board election is stayed pending on appeal to the Tennessee Appeals Court.

Brown was the Democratic nominee for district attorney general, Halbert for Criminal Court clerk and Brooks for Juvenile Court clerk.

Brown lost to Republican incumbent Amy Weirich by 23,756 votes in the certified results approved by the Election Commission last month.

Halbert lost to Republican nominee Richard DeSaussure by 3,595 votes. And Brooks lost to Republican incumbent Joy Touliatos by 13,649 votes.

The margins are important because general election challenges in Tennessee depend on a plaintiff proving not only voting irregularities but enough of the irregularities to change the outcome of the race.

The successful Chancery Court challenges in the Millington and Shelby County Schools board cases involved election contests with much closer margins, fewer than 100 votes.

Republican incumbents and DeSaussure won every countywide race. The lone Democrat running countywide to win in August was incumbent Assessor Cheyenne Johnson.

As in the earlier lawsuits, the new lawsuit questions the use of Diebold electronic voting machines used to conduct elections.

The lawsuit filed Tuesday claims the machines have “incurable deficiencies … including an inability to secure it from even amateur level taint by fraudulent programming.”

The lawsuit also alleges official misconduct by the Election Commission for voting machine problems during early voting and a “fatal failure to secure and seat the voting machines and vote count cards overnight during both the early primary and early general election voting.”

And the 10-page filing cites Willie Herenton’s 142-vote victory in the 1991 Memphis mayor’s race as well as Harold Ford Sr.’s victory in the 1974 general election for Congress as proof of “discrepancies, faults and wrongs of a very similar nature” that were “discovered and prevented” in those two instances.

The suit has been assigned to Part 3 of Chancery Court, which is an open seat following the appointment of Chancellor Kenny Armstrong to the Tennessee Appeals Court effective Sept. 1. A state commission is considering applications for the vacancy to recommend a set of three finalists to Tennessee Gov. Bill Haslam for appointment to fill the Chancery Court vacancy.

Because the two other chancellors, Walter Evans and Jim Kyle, were re-elected and elected respectively on the August ballot, a special judge to hear the case might be considered. Nine of the 15 applicants for the open Chancery Court position were also candidates on the August ballot for other judicial positions. None of them is part of the current lawsuit.